Special Prosecutor Could Save Trump

BY ALLAN J. LICHTMAN

The tipping point in the Watergate scandal was not the release of the White House tapes in July 1974, but the Saturday Night Massacre on Oct. 20, 1973, when President Nixon fired special prosecutor Archibald Cox. Nixon's attempted cover-up backfired and precipitated certain impeachment that he avoided only by resigning the presidency. Donald Trump's Tuesday Night Massacre when he fired FBI Director James Comey may similarly lead to his downfall, unless his critics inadvertently save him by pushing for the appointment of a special prosecutor rather than an impeachment inquiry by the House Judiciary Committee.

Trump's inexplicable and abrupt sacking of Comey may be worse than Nixon's massacre, because the FBI director holds a more important post than a special prosecutor, with wide-ranging responsibilities including counter-terrorism. Unlike Watergate, the offenses that Trump and his team are accused of impact the national security of the United States.

Trump fired Comey just after former Acting Attorney General Sally Yates delivered devastating testimony about Trump's non-response to her warning that the Russians had likely compromised his National Security Advisor Michael Flynn. It closely followed Comey's request for additional resources for the Russian investigation from Jeff Sessions' Justice Department and the issuing of subpoenas for Michael Flynn and his associates.

Nixon's Saturday Night Massacre wounded his presidency beyond recovery. A Time magazine cover story called the massacre "one of the gravest constitutional crises" in presidential history. It spurred outrage in Congress across the aisles and for the first time, polls showed that a plurality of the American people favored the president's impeachment. On Nov. 17, 1973, at a nationally televised press conference, an increasingly desperate Nixon pleaded, "I'm not a crook. I've earned everything I've got."

Most perilously for Nixon's survival, the Saturday Night Massacre prompted the House Judiciary Committee to begin an impeachment investigation. The committee hired 44 lawyers and some 50 researchers and support staff. It studied the history and process of impeachment, subpoenaed the Nixon tapes, pored through voluminous documents and held six days of lengthy televised hearings. It finished its investigation in a relatively efficient eight months, given the complex sprawl of the Watergate scandal.

Nixon's Saturday Night Massacre wounded his presidency beyond recovery. A Time magazine cover story called the massacre "one of the gravest constitutional crises" in presidential history. It spurred outrage in Congress across the aisles and for the first time, polls showed that a plurality of the American people favored the president's impeachment. On Nov. 17, 1973, at a nationally televised press conference, an increasingly desperate Nixon pleaded, "I'm not a crook. I've earned everything I've got."

Most perilously for Nixon's survival, the Saturday Night Massacre prompted the House Judiciary Committee to begin an impeachment investigation. The committee hired 44 lawyers and some 50 researchers and support staff. It studied the history and process of impeachment, subpoenaed the Nixon tapes, pored through voluminous documents and held six days of lengthy televised hearings. It finished its investigation in a relatively efficient eight months, given the complex sprawl of the Watergate scandal.

Trump's critics and the media pundits are misguided in calling for a special prosecutor to investigate charges of collusion with Russia's attack on our democracy. The special prosecutor will be appointed by the Trump administration with no check from Congress and can be fired by Trump just as Nixon fired Cox. Investigations by special prosecutors usually take years to complete their work. Lawrence Walsh, the special prosecutor for the Iran/Contra investigation, for example, began his tenure on Dec. 19, 1986, and issued his final report more than six-and-a-half years later, on Aug. 4, 1993. A special prosecutor will be probing criminal activity, not broader abuses of power that are within the purview of an impeachment investigation.

A far better approach is for the House Judiciary Committee to follow the Watergate precedent and begin an impeachment investigation of President Trump. Such an investigation is not equivalent to impeachment. The committee would still have to decide by majority vote whether to recommend articles of impeachment to the full House as it did in the Nixon case.

An impeachment investigation in the Judiciary Committee would proceed independently of the executive branch and would have sufficient constitutional authority to forestall any efforts by the president to claim executive privilege or tenuous national security claims for withholding evidence. It would not duplicate the labors of the House and Senate Intelligence Committees or the FBI. The Judiciary Committee would develop its own evidence. It would collect and analyze the material produced by other bodies and assess whether to vote articles of impeachment against the president.

A congressional investigation would have unlimited capacity to explore all potential grounds for impeachment. The Judiciary Committee would obviously examine evidence of any collusion between Trump or his agents and foreign power to manipulate an American election. Trump could be charged with treason if in the most extreme case, he directed or condoned such collusion. He could be charged with the felony of misprision of treason (failure to report treasonous conduct) if it's discovered that he knew about such complicity but failed to report the crime.

The committee could also consider whether Trump violated the Emoluments Clause of the Constitution, for example, by accepting 38 potentially lucrative trademarks from China while serving as president. And it could explore whether Trump obstructed justice by conspiring with Rep. Devin Nunes to derail the House investigation and firing the director. It could additionally examine whether Trump abused the powers of his office by reportedly demanding personal loyalty from the supposedly independent FBI director in a January 27 dinner conversation and then seeming to threaten Comey by tweeting, that "Comey better hope that there are no 'tapes' of our conversations before he starts leaking to the press!" If as Trump implies, there are tapes of Trump's conversations as president, they could become today's version of the Nixon Watergate tapes.

As in Watergate, Republicans in the House should put patriotism above party and support this investigation. If what Trump says is true, that there was no collusion between his team and the Russians, then he should welcome such an investigation to clear the air and remove the Russian sword of Damocles that hangs over his head.

This article was originally published on USA News and World Report on 5/12/17.